In the year 1800, a mutual contract was made between the parties to the present bill, wherein the plaintiffstipulated, that he would convey to the defendant his share, as heir apparent in his father’s estate, at appraisal; and in satisfaction, the defendant agreed to give his own or assigned notes, with security, or to transfer by deed land at Stephentown, and in the Susquehannah purchase. To secure the plaintiff, the defendant gave his bond, with condition, obliging himself to perform the above agreement. The plaintiff’s interest in his father’s estate was duly ajjpraised ; and, on his request, in June, 1800, his father conveyed to the defendant the land stipulated, in full execution of the plaintiff’s contract. From this moment he had a complete right to the fulfilment of the contract, on the part of the defendant.
In September, 1802, the defendant, in execution of his engagement, tendered to the plaintiff valid deeds of the land at Stephentown, and in the Susquehannah, which the plaintiff refused to receive ; upon which, the deeds were deposited, by the defendant, with Dan Parmelee, Esq. to keep until called for. The effect of this act, on the part of the defendant, was performance of his engagement, and on the part of the plaintiff, a vested right to the deeds. The lands did not pass, by reason of the plaintiff’s refusal to accept the deeds ; but his right to the deeds, notwithstanding, was indisputable ; and whenever he chose, he might call and take them. This assertion 1 found, first, on the nature of the transaction, and the apparent intention of the defendant. He meant to perform his agreement, and to protect himself against a future demand; and hence, the deeds were deposited, surely not for his own use, but for the use of the plaintiff, until he should consent to receive them. Secondly, I consider this to be the operation of law on the facts stated. On this point I forbear to dwell further, because the subsequent transactions between the parties clear the case of all difficulties.
In the year 1806, every thing remained in statu quo ; particularly, the deeds still were in the hand of Parmelee, under the terms of the deposit, and unresumed, by the defendant. At this period, the defendant demanded the bond he had giv-*353cn to the plaintiff, and what is a very material fact, on the ground of his having fulfil led. his contract. The plaintiff delivered to the defendant the bond, and, by unquestionable inference, ore the same ground. Here let us pause. The facts before-mentioned being all within the knowledge of both parties, the claim of the bond, on the above principle, speaks this language. “ I have performed the contract, on my part, by the tender of the deeds, now remaining in the hands of Parme-Jee, for your use. Go, and receive them ; but my written agreement I have fully executed, and I request you to deliver it.” This request was immediately complied with, and the effect of the transaction was an implied delivery of the deeds; the. plaintiff virtually accepting them, by giving up the bond. Nor is there any conceivable difference between the consequence resulting from the preceding facts, and the original delivery of the deeds to a stranger for the plaintiff’s use. In either event, the plaintiff not dissenting, the lands would become his. Shep. Touch. 57,8. On this view of the case, the surreptitious resumption of the deeds, by the defendant, was fraudulent.
Several objections have been proposed, to each of which I will distinctly reply.
In the first place, it is said, when the bond was delivered up by the plaintiff, he declared, that he made a present of it to the defendant. If such words were spoken, it must be remembered, that, at the same time, the defendant delivered the deeds to the plaintiff; and the giving of the bond implies no refusal to receive the deeds.
Secondly, the plaintiff often asserted, that he would never receive the land at Stephentown p and this amounts to a waiver of the contract. This is legally impossible. If waived or rescided, it must be so on both sides ; and the defendant, by the sole act of his brother, would be deprived of the estate conveyed to him by his father. Hunt v. Silk, 5 East, 451.
Thirdly, the demand, it is said, is stale, and the lapse of time which has intervened, precludes the inference of chancery. The answer is obvious, and conclusive. The demand is far from being ancient. The fraud was committed in 1806 and the demand, on the part of the plaintiff, was made in 1817; a period only of eleven years. Besides, the court have the Aest possible evidence, that the claim of the plaintiff is equitable. The defendant admits he has never performed his en*354gagement; and the determination against him is founded on his own representation.
Fourthly, the sale of the property, by the defendant, before the plaintiff’s demand of the deeds, constitutes the last objection. This, in effect, is an argument founded ultimately on the defendant’s own wrong. It is no hardship which ought to be regarded with a very favourable eye, that the fraud of the defendant is followed by consequences unexpected and severe. But even the seeming inconvenience may be avoided, by the manner of the decree. If the defendant cannot convey to the plaintiff the land at Stephentown, he may pay for it; and 4his is just and reasonable.
1 am of opinion, that the bill of the plaintiff ought to be granted, and the defendant decreed to convey to him the land, and pay the rents and profits from 1806 ; or that he pay the value of the land, at that period, with the rents and profits since. ■
Peters, Chapman and Brainard, Js. were of the same opinion. Bristol, J. dissented.Decree for the plaintiff accordingly.